Argument preview: The Court and the D.A. — again

Posted Sun, November 6th, 2011 12:21 am by Lyle Denniston

At 11 a.m. Tuesday, the Supreme Court will return, as it has multiple times, to claims of misconduct by prosecutors in the New Orleans district attorney’s office. The case this time is Smith v. Cain (docket 10-8145). One hour of oral argument is scheduled. Louisiana inmate Juan Smith will be represented by Kannon K. Shanmugam of the Washington, D.C.., office of the Williams & Connolly law firm. Arguing for Louisiana warden Burl Cain will be Donna R. Andrieu, an assistant district attorney in New Orleans.

Background

For more than 15 years, the Supreme Court has paid unusually close attention to the record of criminal case prosecutors in the New Orleans district attorney, particularly during the 30 years of service of D.A. Harry Connick, Sr. In fact, the Justices’ review this Term of a new challenge is the second in the past two Terms, and both cases involved the same complaint that has figured in appeals from convictions won by that office, back to Kyles v. Whitley in 1995. The claim is that the prosecution team for Orleans Parish had followed a continuing policy of refusing to hand over to defense lawyers evidence that could help them defend their clients. They are supposed to do that, under the Court’s 1963 decision in Brady v. Maryland, placing on prosecutors a duty under the Constitution’s Due Process Clause to disclose evidence that could have an impact on guilt or innocence, so that the defense has a chance to contest it.

Because prosecutors, according to the Court, should be more concerned with seeing that “justice shall be done” than with winning a case, DAs and their staffs are supposed to diligently examine the evidence gathered for a prosecution to see if it might be of value to the defense, and they are to do that even if police do not flag such evidence for them. In New Orleans, when a new district attorney — Eddie Jack Jordan, Jr. — came into office in 2003, succeeding Connick, he contended that “the former administration had a policy of keeping away as much information as possible from the defense attorney.”

That very quotation has been put before the Court as it takes up the case of Juan Smith, who has been convicted of a role in two murderous rampages that occurred in New Orleans within a month of each other in February and March, 1995, leaving nine people dead and others wounded.

Smith’s case had reached the Supreme Court last Term, as the Court was reviewing the case of Connick v. Thompson (docket 09-571) — a case that would produce one of the most bitterly divided opinions of the Court in a criminal case in recent years. In a 5-4 ruling in late March, the Court in the Thompson case absolved the New Orleans office under Connick of complaints that it had failed to train prosecutors about their duty to disclose evidence under the Brady decision. That decision overturned a $14 million damages verdict a jury had imposed on the D.A. in favor of John Thompson, who won the award after his murder conviction had been overturned when withheld evidence later turned up.

While draft opinions in the Thompson case were circulating among the Justices, the Court asked the state of Louisiana to respond to Juan Smith’s petition for review (Smith v. Cain, docket 10-8145). Nine days after the Thompson decision came down, the Court told lower courts to send up to it the full record of Juan Smith’s case, making it appear that the Court was examining that case as a potential sequel. Nothing further was done with the Smith petition, until it was granted on June 13.

Smith had been found guilty at an initial trial in December 1995 of five murders; he was sentenced to life in prison with no chance of parole. At a second trial, he was convicted of four murders in the other episode, and for that was sentenced to death. At this point, Smith’s appeal to the Supreme Court tests only his initial conviction and the resulting life sentence. That case has become known in the Louisiana city as the Roman Street murders. The other case is called the Morrison Road murders. Smith remains on death row in Louisiana following his conviction of those murders. (After initial appeals in both of the murder cases, the Supreme Court had denied review.)

In the Roman Street case, prosecutors told the jury that a group of men apparently wearing masks entered the home of Reba Espadron on North Roman Street, demanding money. They killed five people in the house, and wounded three others — including Ms. Espadron. Although she survived long enough to be interviewed by police, she died of her wounds. The record of that interview, Smith’s lawyers contend, was never turned over to defense counsel.

Also injured during that crime was Larry Boatner. He was hit on the head with a gun by one of the intruders. Boatner originally told police he could not identify any of the attackers, saying he was too scared to look. But, later, he picked Juan Smith’s picture out of a photo lineup, and that identification was a crucial piece of evidence in the prosecution of Smith.

In May 1995, while the investigation of the Roman Street and Morrison Road murders was going on, police arrested three men on charges of murdering a 13-year-old girl. One of those three was a man named Robert Trackling. Upon arrest, he was placed in a cell with another man, who later told police that Trackling had admitted to being involved in both of the murder episodes in February and March. Smith’s lawyers would later argue that this information was never shared with them; Trackling was never prosecuted for the Roman Street killings, and made a deal in return for testifying against Smith in the Morrison Street murders.

It was based upon what police learned from the Trackling deal that a New Orleans detective staged a photo lineup, including a picture of Smith. Ms. Espadron, shown those pictures before she died, did not pick out Smith as an assailant. That was the same lineup from which Larry Boatner identified Smith as a killer. He had learned earlier from Ms. Espadron that Smith was a suspect in the Roman Street crimes; he later would say that he was confused and afraid at the time, and claimed he was pressured into making an identification — information that Smith’s lawyers would claim was not turned over to them. Smith’s lawyers blamed an assistant DA, Roger Jordan, for withholding that evidence.

After his conviction for the Roman Street crimes became final, Smith’s defense lawyers sought post-conviction relief, offering what they contended was proof of several layers of “Brady” material that had been withheld from them and that, they argued, would have aided Smith’s defense. Aside from the evidence from the interview with Ms. Espadron and the circumstances of Boatner’s identification, the withheld evidence, according to Smith’s challenge, included a detective’s notes on an interview with Philip Young. Young, it turned out, probably was one of the intruders in the Roman Street crimes, and was wounded in the shooting. During that interview, Young, shown a photo of Smith, was said to have remarked that it was not Smith who shot him.

Smith’s challenges were turned aside by Louisiana courts, with the state Supreme Court refusing review in September of last year. His lawyers filed their petition with the Justices last December.

Petition for Certiorari

Lawyers with the Capital Post-Conviction Project of Louisiana filed Smith’s petition, arguing that state courts had disregarded “firmly-established precedents of this Court regarding suppression of material evidence favorable to a defendant and presentation of false or misleading evidence by the prosecutor.” The petition raised two questions, keyed to three Supreme Court precedents: Brady v. Maryland, from 1963; Napue v. Illinois in 1959, overturning a murder conviction because a prosecutor had allowed false evidence to go uncorrected, and Giglio v. U.S. in 1972, ordering a new trial in a forgery case because a prosecutor had failed to disclose promises made to one man in return for his testimony against another man.

Smith’s first question asked the Court to decide whether, under those precedents, the “cumulative effect” of the withholding of evidence against him would have made his trial come out differently, and the second question asked whether state courts had violated due process in rejecting Smith’s claims under those precedents.

The petition was a broadside attack on the record of the New Orleans prosecutors in Connick’s day. It mentioned the Kyles and Thompson cases in a lengthy footnote listing other cases, showing a history of that office in refusing to turn over evidence that could aid the defense. Since 1981, it said, there have been seven cases in which Louisiana death-row inmates have been exonerated, and four of the seven had been prosecuted in Orleans Parish, and those four all involved “serious Brady violations.” Among those were the Kyles and Thompson cases.

The Orleans Parish D.A.’s office responded, saying that Smith’s counsel was essentially proposing that “any conviction out of the Orleans Parish District Attorney’s Office mandates reversal.” What the Smith petition had done, the prosecutors argued, was to assemble a series of “individually meritless suggestions.” Not one of the claimed violations, the brief said, involved “material” evidence and none of them, if put forth at the trial, would have changed the outcome. Seeking to challenge Smith’s claim that state courts brushed off his new evidence of Brady violations, the D.A.’s office said that the judge who heard those claims had held a four-day hearing with testimony from ten witnesses.

The prosecutors challenged, point by point, the significance of each of Smith’s complaints about withheld pieces of evidence.

Merits Briefs

With experienced Supreme Court advocates taking on his case, Juan Smith’s merits briefs dwelled upon the specifics of the information the brief said prosecutors had that never was passed to defense counsel. “In this case,” it argued, “the favorable information that the prosecution withheld is remarkable both in its scope and its materiality.” Indeed, the brief said, that information “is breathtaking in its scope and in its exculpatory and impeachment value.” It marshaled the details in a more orderly fashion than the petition had done, summing up that the details show “a particularly egregious set of facts.”

And, given the string of cases in which the Court has examined the practices in D.A. Connick’s office, the Smith brief lambasted that office for having “developed an unrivaled reputation for the disregard of Brady‘s requirements.” It went on in some detail describing the record of that office, and recalled that the Kyles decision in 1995 had warned these same prosecutors “to err on the side of disclosure in order to avoid Brady violations,” and yet, the brief said, “that warning appears to have gone unheeded in Orleans Parish.”

The lead prosecutor in Smith’s case, Roger Jordan, the brief noted, had been sanctioned by the state Supreme Court for Brady violations in a murder case, in which the conviction had been overturned — the only time the state’s highest court had disciplined a prosecutor for such a violation.

The long history of misconduct in Connick’s office, the filing said, does not require reversal of Smith’s conviction, but it does help support the need for a new trial for Smith. The brief then returned to an even more detailed recitation of the facts.

The strategy behind this focus emerged in the brief’s relatively spare discussion of legal precedent, with the brief saying that “the governing legal principles are largely settled.” The Court, it indicated, need only apply those principles to the details of what Smith’s defense lawyers were not allowed an opportunity to challenge at trial.

The District Attorney’s brief on the merits picks up on the challenge to lay out the details of evidence in the five-murders trial, and contended that most of what Smith has complained about was either not actually withheld, was not material to the case, or, in some significant instances, was not the kind of evidence that would be admitted at trial anyway. The answering brief suggested that, at most, Smith’s counsel had two pre-trial statements from witness Larry Boatner that the defense did not know about. Those two, however, would not have aided Smith, the brief argued, because they represented only “temporary equivocation” about what he had witnessed, and were clearly outweighed by Boatner’s strong identifications, in court and out, that Smith was “the man who attacked him and murdered five of his friends.”

The prosecutors did not attempt to evade the history of misconduct in their office, but it responded in muted tones. “That there has been even one Brady violation in Orleans Parish,” it said, “is to be lamented…It is inarguable that, in striving to comply with the teachings of this Court, the state has not always succeeded in attaining its goal.” Still, it asserted, Smith’s lawyers were using that record to make “a base appeal to prejudice, attempting to manipulate the just concerns of this Court.”

To Smith’s contention that there had been a total of 28 Brady iolations in the Parish office in the 48 years since Brady was decided, the prosecutors’ brief said that only 13 of the 28 actually had such violations.

It defended Smith’s prosecutor, Roger Jordan, by accusing the Smith brief of “a bald attempt to incite prejudice” by making an “ad hominem” attack on Jordan. The Supreme Court itself had said, the brief added, that if there is constitutional error in a criminal case, “it is because of the character of the evidence, not the character of the prosecutor.”

And, it commented, when Smith’s evidence of withheld evidence that supposedly was material to his defense is examined for its “character,” it does not support his challenge.

Smith’s side of the case has drawn the support of criminal defense lawyers, including public defenders in New Orleans, and the advocacy group, the Innocence Network, that sought to put a focus upon the question of reliability of the prosecutor’s key witness against Smith, Larry Boatner. Perhaps the most unusual amicus brief on that side is by the American Bar Association, urging the Court to go beyond a decision that determines whether there were violations of Smith’s rights under the Brady constitutional standard, and to formally embrace the notion that prosecutors must abide by the state’s own “ethical disclosure obligations,” and, in this regard, the Association pushed its own ABA ethical canons, which it conceded are broader than what Brady compelled.

That brief drew a response from the National District Attorneys Association, arguing in an amici filing that a declaration by the Court aimed at state ethical codes would make prosecutors subject to a wide variety of ethical disclosure obligations, since not all states have crafted their ethical codes to match the ABA’s model.

There are no amici briefs supporting the Orleans Parish prosecutors.

Analysis

The litigating advantage in this case rather obviously lies with Juan Smith and his lawyers. The Court’s undoubted familiarity with the Orleans Parish office’s record, and the freshness of the deep division over the Connick v. Thompson decision last Term, probably incline the Court against giving that office another victory so soon over the very same core issue. In some ways, the nature of the Smith prosecution does seem to bolster the Thompson dissenters’ claim that there was more than a single Brady violation in the record of that office.

Also, it very likely did not help the local prosecutors’ cause to complain that Smith’s lawyers were trying to stir up prejudice, or for them to mount a rather shaky defense of the sanctioned prosecutor in the case. Reminders of what the Court had observed over the years about that office’s misconduct was an obvious gesture for Smith’s lawyers, since it put his claims in a context hardly favorable to the team that prosecuted him.

Giving the sequence of timing of the Court’s processing of this case even as it was working its difficult way through Thompson, it is difficult to avoid the speculation that at least some members of the Court viewed this case as a way to make at least some amends for that heavily criticized decision. While the four dissenters in that ruling could have put the Smith case on the decision docket themselves (it only takes four votes to do that), it seems unlikely that they would have done so without some sense that they could pick up a fifth vote on the merits. Assuming that the four dissenters did vote to grant, they may well have had some confidence that Justice Anthony M. Kennedy would be with them on the merits if they did. That could have come out in the initial discussion of whether this was a proper case for review.

The battle in the briefs over the specific facts of the Smith prosecution could tilt it either way, although on balance the Smith brief appeared to be a somewhat more compelling treatment of the record. The Court does not need to make much new law on the nature of Brady violations in order to decide the case, and that may enhance the significance of the facts and the inferences that the Justices draw from them.

There is no way to know, at least until the oral argument next week, whether the Court may be tempted to use the case in order to make some broad new ethical declaration, along the lines suggested in the ABA’s brief. That might be seen as intruding on the state courts’ authority to determine ethical norms for the lawyers within their borders, including the prosecutors.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.